1. In the instant application under Sections 397, 401 and 482 of the Cr. P. C., the proceedings in Special Case No. 4/1999 including order dated 27.04.2004 under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, now pending before the learned Special Judge, 3rd Court, Kolkata has been sought to be quashed.
2. The petitioner contends that he joined as Junior Land Officer in the West Bengal Government Service in 1973 and thereafter joined the Calcutta Dock Labour Board as an Accounts Officer in September, 1990. In January, 1993 he was promoted to the rank of Executive Officer (DC & SW) and in 1970 was given an ad hoc appointment as Deputy Chairman of said Dock Labour Board by the Central Government. But before assumption of charge he became a scapegoat of vested interest and was falsely implicated in a criminal case registered with the CBI being RC 14(A) 1997 dated 25.02.1997 which resulted in submitting a charge sheet for his prosecution for acquiring assets disproportionate to his income to the tune of Rs. 4,35,014/-.
3. Thereafter he filed an application under Section 239 Cr.P.C. praying for his discharge on the grounds of want of valid sanction as required under Section 19 of the Prevention of Corruption Act, 1988 which is the pre-requisite in the case of a Central Government employee. In his case the sanction was accorded by Sri H. P. Roy, Chairman of the Calcutta Port Trust who is not his employer and a competent authority of the Calcutta Dock Labour Board. The allegations levelled against him for possessing disproportionate assets are totally baseless and false since he had adequate sources of income/receipts. But in total disregard of the materials supplied by him, the learned court below by order dated 27/04/2004 held that there exists prima facie materials for framing a charge against him as per prosecution report which is now assailed.
4. Learned layer for the petitioner has contended that as an Executive Officer of the Calcutta Dock Labour Board, petitioner shall be governed by the Calcutta Dock Labour Board Clerical and Supervisory Workers (Regulation & Employment Scheme) 1970, as amended upto 23/07/1989 and as he was holding a civil post under the Central Government he cannot be removed from the service without order of the prescribed appointing authority as enshrined in Article 311 (1) of the Constitution. The Calcutta Port Trust and the Calcutta Dock Labour Board are two different organisations, having distinct identities and are governed by the two different regulations. Thus, the Calcutta Port Trust is governed by Major Port Trusts Act, 1963 while the Calcutta Dock Labour Board is regulated by the Dock Workers (Regulation & Employment) Act, 1948. Sri H. P. Roy who accorded sanction for his prosecution was appointed as Chairman of the Calcutta Port Trust as per telex message dated 30/04/1997 and he was made Chairman of the Calcutta Dock Labour Board only on 26/12/2000 by notification of the Govt. of India and so for all practical and legal purposes, Sri H. P. Roy was not the Chairman of the Calcutta Dock Labor Board on the date of his according sanction order on 30/03/1999 which was signed by him in the capacity of Chairman of the Calcutta Port Trust under his office seal and signature. Learned Court below in total disregard of such legal and factual aspect has erroneously decided to accept the prosecution report. Moreover, he furnished sufficient materials to indicate his sources of income against the alleged disproportionate assets and ignoring such facts learned Court below has held that a prima facie case for framing of charges has been made out which is not sustainable in law. Therefore, he has prayed for quashing the proceeding including the said order for framing of charge.
5. From the relevant order I find that the learned trial Judge while considering the legality and propriety of the sanction order has observed that Sri H. P. Roy, the then Chairman of Calcutta Port Trust being the competent authority under SSR 8/8 (Supplementary Service Rules 8/8) of resolution no. 137 dated 25/03/1965 of Calcutta Dock Labour Board accorded sanction having due concurrence of Ministry. Considering the authority quoted and concurrence of the concerned Ministry, he is satisfied that prima facie sanction was accorded before lodging a prosecution. He is of further view that at this stage it cannot be held that the prosecution was lodged without any sanction. The veracity of the same cannot be adjudicated at this stage i.e. framing of charge. Therefore, he has not accepted the contention of the accused that the instant prosecution has been made without proper sanction.
6. For the purpose of adjudicating this point, the relevant prosecution order is quoted below :-
I, Shri H. P. Roy, Chairman after carefully examining the materials/documents placed before me, and after applying my mind with regard to the said allegation. circumstances, relevant documents & papers of the case, consider that the said Shri Ranabir Saha should be prosecuted in the court of law for his said offence.
Now, whereas, I Shri H. P. Roy, Chairman being the competent authority under SSR 8/8 (Supplementary Service Rules 8) of Reso. No. 137 dt. 25.03.65 of C.D.L.B. and with the concurrence of Ministry to remove said Shri Ranabir Saha from his present post do hereby accord sanction as required under section 19 (1) (c) of Prevention of Corruption Act, 1988 to prosecute said Shri Ranabir Saha under section 13 (2) r/w sec. 13 (1) (e) P.C. Act, 1988, corresponding sec. 5 (2) r/w sec. 5 (1) (e) of P. C. Act, 1947.
H. P. Roy
Chairman, Calcutta Port Trust
7. The Investigating Officer CBI/ACB has also referred to the said sanction order. In his chargesheet filed on 22/07/1999 he has relied upon the said sanction order in the following manner:
Sanction order dated 30/03/1999 as is required under Section 19 (1) of P.C. Act, 1988 has been obtained from the competent authority and is enclosed herewith for his kind perusal.
8. For the purpose of convenience relevant portions of both Sections 197 and Section 19 of the Prevention of Corruption Act are quoted below:
Section 197 (1) (b), Cr.P.C.: No court shall take cognizance of an offence committed by a public servant not removable from his office save by or with the sanction of the Government of India except with the previous sanction in the case of a person who is employed or as the case may be was at the time of commission of the alleged offence employed in connection with the affairs of the union of the Central Government.
Section 19 of the Prevention of Corruption Act: (1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Whether for any reason whatsoever any doubt arises as to whether the previous sanction as required under subsection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
9. In this connection learned lawyer for the petitioner has drawn my attention to his circular issued by the Government of India in its Ministry of Shipping on 26th December, 2000 (Annexure P-9). The said notification was issued by the under Secretary to the Govt. of India in exercise of the powers conferred by Sub-Section (3) and (4) of Section 5A of Dock Workers (Regulation of Employment) Act, 1948 and in supersession of the earlier notification, of the Govt. of India in the Ministry of Surface Transport bearing No. S.O. 2993 dated 17th October, 1996 the Central Government by notification dated 26.12.2000 [file no. LB-13014/1/6-US(L)] established the Calcutta Dock Labour Board with the 15 members, 5 members representing the Dock Workers the Employers of Dock Workers and Shipping Companies each. In the said notification, it is further provided in para- 2 that the Central Government thereby nominates, the Chairman, Calcutta Port Trust, Calcutta, as the Chairman of the Port. Referring to this notification learned lawyer for the petitioner has submitted that by virtue of such power vested by notification dated 26/12/2000, the Chairman, Calcutta Port Trust nominated as representative of the Central Government became Chairman of the Calcutta Dock Labour Board with effect from the said date, i.e., 26/12/2000. The person appointed as Chairman of Calcutta Port Trust may exercise his power as appointing authority or disciplinary authority on behalf of the Dock Labour Board in terms of the said notification dated 26.12.2000 issued under Dock Workers (Regulation of Employment) Act, 1948. In the instant case, Mr. H. P. Roy accorded the sanction on 30/03/1999 as Chairman of the Calcutta Port Trust. At that time, he was not the competent person to exercise the powers and discharge the functions appointing and disciplinary authority of Calcutta Dock Labour Board which is a separate organisation created under different statutes of the Parliament.
10. Therefore, it is apparent that as Chairman of the Calcutta Port Trust, Mr. Roy accorded sanction for prosecution of the petitioner staff of the Calcutta Dock Labour Board though he had no legal authority to exercise such power on 30.03.1999.
11. For the purpose of better appreciation the relevant provisions of the Major Port Trusts Act, 1963 are reproduced below:
Statement of object: An Act to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith.
Be it enacted by Parliament in the Fourteenth Year of the Republic of India as follows:-
Section 1(3) It applies in the first instance to the major ports of Cochin, Kandla and Visakhapatnam and the Central Government may, by notification in the Official Gazette, apply the provisions of this Act to such other major port, and with effect from such date, as may be specified in the notification.
2(b) Board, in relation to a port, means the Board of Trustees constituted under this Act for that port.
2(c) Chairman means the Chairman of a Board and includes the person appointed to act in his place under section 14.
3. Constitution of Board of Trustees.- (1) With effect from such date as may be specified by notification in the Official Gazette, the Central Government shall cause to be constituted in respect of any major port a Board of Trustees to be called the Board of Trustees of that port, which shall consist of the following Trustees, namely:
(a) a Chairman to be appointed by the Central Government;
5. Board to be body corporate. Every Board constituted under this Act shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold or dispose of property and may be the name by which it is constituted, sue or be sued.
23. Schedule of Boards staff. A board shall, from time to time, prepare and sanction a Schedule of the employees of the Board whom it deems necessary and proper to maintain for the purposes of this Act and such Schedule shall indicate therein the designations and grades of employees and the salaries, fees and allowances which are proposed to be paid to them:
Provided that the previous sanction of the Central Government shall be obtained for the inclusion in the said Schedule of those designations and grades of employees and the salaries, fees and allowances payable to them which the Central Government may, by order, specify, and where no such order is made, of such posts (including the salaries and allowances attached thereto) which are required to be created by the Central Government, or for the creation of which the previous sanction of the Central Government is required, under this Act.
24. Power to make appointments. (1) Subject to the provisions of the Schedule for the time being in force sanctioned by a Board under section 23, the power of appointing any person to any Post, whether temporary or permanent, shall
(a) in the case of a post
(i) the incumbent of which is to be regarded as the Head of a department; or
(ii) to which such incumbent is to be appointed; or
(iii) the maximum of the pay scale of which (exclusive of allowances) exceeds such amount as the Central Government may, by notification in the Official Gazette, fix, be exercisable by the Central Government after consultation with the Chairman;
(b) in the case of any other post, be exercisable by the Chairman or by such authority as may be prescribed by regulations:
Provided that no person shall be appointed as a pilot at any port, who is not for the time being authorised by the Central Government under the provisions of the Indian Ports Act to pilot vessels at that or any other port.
(2) The Central Government may, by order, specify any post the incumbent of which shall, for the purposes of this Act, be regarded as the Head of a department.
12. From the above it will appear that the Calcutta Port Trust is a statutory body constituted under the Major Port Trusts Act, 1963 and the appointment and condition of service and other related matters of the Calcutta Port Trusts will be regulated under the rules and order framed and issued under authority of the said Act of 1963 and shall be exercised by a Board constituted by the Central Government through its Chairman.
13. But the constitution of the Calcutta Dock Labour Board owes its origin elsewhere. It will be evident from the notification dated 26th December, 2000 issued by the Ministry of Shipping, Government of India as at Annexure P-9 that such Board was constituted under a separate Statute, i.e., Dock Workers (Regulation of Employment) Act, 1948 in the following manner:
GOVERNMENT OF INDIA/BHARAT SARKAR MINISTRY OF SHIPPING POT PARIVAHAN MANTRALAYA
New Delhi, the 26th December, 2000 NOTIFICATION
S.O. In exercise of the powers conferred by sub-section (3) and (4) of Section 5A of Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948) and in supersession of the notification of the Government of India in the Ministry of Surface Transport, No.S.O. 2993 dated 17th October, 1995, the Central Government hereby appoints the following persons to be members of the Calcutta Dock Labour Board established under sub-section (1) of the said section 5A, namely:
I. MEMBERS REPRESENTING THE CENTRAL GOVERNEMNT
1. Chairman, Calcutta Port Trust, Calcutta.
2. Deputy Chairman, Calcutta Dock Labour Board, Calcutta.
3. Joint Secretary (Industrial Relations), Labour Department. Government of West Bengal, Calcutta.
4. Traffic Manager, Calcutta Port Trust, Calcutta.
5. Sh. N. Barik, Under Secretary (Labour-I), Ministry of Shipping.
II. MEMBERS REPRESENTING THE DOCK WORKERS:
1. MD. Kausar Calcutta Dock Workers Union (HMS).
2. Sh. Janaki Mukherjee National Union of Waterfront Workers (INTUC).
3. Members representing West Bengal Dock Mazdoor Union (INTUC) (to be appointed after intra-union dispute is resolved).
4. Sh. Amitabha Banerjee Calcutta Port & Dock Industrial Workmen Union (FITU/AIP&DWF;).
5. Sh. Rabin Mazumdar, Dock Shramik Association (CITU).
III. MEMBERS REPRESENTING THE EMPLOYERS OF DOCK WORKERS AND SHIPPING COMPANIES:
1. Shri Partha Sadhan Bose
2. Shri S. Mahalingham )
3. Sh. D. K. Gorsia )
Consultative Committee of Stevedores Association in Calcutta 4. Capt. S. B. Mazumdar - Association of Shipping Interests in Calcutta
5. Capt. S. Mukherjee - Indian national Shipowners Association
2. The Central Government hereby nominates the Chairman, Calcutta Port Trust, Calcutta as the Chairman of the Board.
(V. K. Aggarwal)
Under Secretary to the Govt. of India File No. LB-13014/1/96-US(L)
14. From the said notification it will appear that the Chairman of the Calcutta Port Trust has been nominated by the Central Government as Chairman of the Dock Labour Board by such notification dated 26.12.2000. Thus, the Chairman of the Calcutta Port Trust assumed jurisdiction and administrative control over the affairs of the Calcutta Dock Labour Board under the authority of the Dock Workers (Regulation of Employment) Act, 1948 and not under the Major Port Trusts Act, 1963. It is made clear that the derivation of the administrative power under two distinct act of the legislature clearly establishes distinct identity of two organisations and they cannot for any administrative purpose claim any common rights and obligations under any individual Act. Where the legislature makes separate law for two separate organisations whose functions may be of the identical nature, the exercise of administrative power by each authority should be made in accordance with the specific manner and by the specified authorities mentioned in each Act.
15. As a consequence the learned lawyer for the petitioner has rightly raised objection regarding validity of the sanction accorded by the Chairman of the Calcutta Port Trust on 30.03.1999 by virtue of the power conferred on him under the Dock Workers (Regulation of Employment) Act, 1948 on 26th December, 2000.
16. The nature of exercising such power by the Chairman, Calcutta Port Trust will be reflected from the sanction order no. RC14/A/97-Cal dated 30.03.1999 (Annexure P-3). The relevant extract of the sanction order has already been quoted in paragraph 6 above. It will appear from the said sanction order that the same was accorded under Section 19(1)(c) of the Prevention of Corruption Act, 1988 being the competent authority under Supplementary Service Rules 8 (SSR 8/8 of resolution no. 137 dated 25.03.1965 of Calcutta Dock Labour Board).
17. In the supplementary affidavit filed by the petitioner relevant extract of the resolution no. 137 dated 25.03.1965 has been furnished by the petitioner. From the same it will appear that by notification no. 1985 dated 01.06.1970 issued by the Ministry of Labour, Employment and Rehabilitation the Central Government has formulated the scheme namely the Calcutta Dock Workers (Regulation of Employment) Scheme, 1970 in exercise of the power conferred by sub-section (1) of section 4 of the Dock Workers (Regulation of Employment) Act, 1948. It also appears that by resolution no. 137 dated 25.03.1965 the Calcutta Dock Labour Board has accepted the recommendation of the sub-committee taken at its meeting held on 2nd and 5th February, 1965 in supersession of the existing resolutions/ decisions of the Board and amended the staff regulations together with PTO concession rules with further decision that a reference be made to the Central Government as to legality or otherwise of the provision contained under clause 13(iii) of Discipline, Punishment and Appeal Rules for the staff of the Board. But in the said scheme no power has been vested upon the Chairman, Calcutta Port Trust to deal with the staff matter of the Calcutta Dock Labour Board. In the relevant Discipline, Punishment and Appeal Rules it has been specifically provided under rule 1 (page 99 of the supplementary affidavit filed by the petitioner) that the appointing authority or any authority to which is subordinate or any other authority empowered by the Board may place an employee under suspension with certain other conditions for communication of such order to the appointing authority if any order of suspension is made by a valid lower appointing authority. Under rule 6 of such Disciplinary Rules the penalty for reduction to a lower post or removal from service can be imposed upon an employee by the appointing authority. Therefore, the next relevant question is to decide who is the appointing authority of the Calcutta Dock Labour Board.
18. It appears that unlike the Major Port Trusts Act, 1963 the Dock Workers (Regulation of Employment) Act, 1948 was passed for the purpose of constitution and function of Dock Labour Board to be established under Section 5A thereof. The relevant provisions of the said Act of 1948 are quoted below:
2(a). Board means a Dock Labour Board established under S. 5-A.
3(1). Provision may be made by a scheme for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or not, in a port.
5A. Dock Labour Boards. (1) The Government may, by notification in the Official Gazette, establish a Dock Labour Board for a port or group of ports to be known by such name as may be specified in the notification.
(2) Every such Board shall be a body corporate with the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of property and to contract and may, by that name, sue and be sued.
(3) Every such Board shall consist of a Chairman and such number of other members as may be appointed by the Government:
Provided that every such Board shall include an equal number of members representing
(i) the Government,
(ii) the dock workers, and
(iii) the employers of dock workers, and shipping companies.
(4) The Chairman of a Board shall be one of the members appointed to represent the Government, and nominated in this behalf by the Government.
5B. Functions of a Board. (1) A Board shall be responsible for administering the scheme for the port or group of ports for which it has been established and shall exercise such powers and perform such functions as may be conferred on it by the scheme.
(2) In the exercise of its powers and the discharge of its functions, a Board shall be bound by such direction as the Government may, for reasons to be stated in writing, give to it from time to time.
19. It also appears that by such power conferred under Section 3 of the Dock Workers (Regulations of Employment) Act, 1948 the Board has approved the scheme to regulate the employment of its workers and staff which is known as Calcutta Dock Clerical and Supervisory Workers (Regulation of Employment) Scheme, 1970.
20. In the said scheme the Board has been defined as the Calcutta Dock Labour Board constituted under the Dock Workers (Regulation of Employment) Act, 1948 under Rule 3(b) and Chairman has been defined as the Chairman of the Calcutta Dock Labour Board. Under clause (c) of rule 3 Dock Employee has been defined as the person by whom a registered dock clerical and supervisory worker is employed or is to be employed and includes Shipping Companies or Steamer Agents or Stevedore employer or Contractors or a group of these as defined in clause (e) and Executive Officer means the Executive Officer appointed by the Board under clause 5. Clause 5 of the said scheme is quoted below:
5. Executive Officer and other officers:
(1) The Board shall by resolution and subject to approval by the Central Government, appoint an Executive Officer for the purpose of carrying out the day-to-day administration of the Scheme under powers delegated to him by the Board.
(2) The Executive Officer shall, subject to the supervision and control of the Chairman, Deputy Chairman and subject to the provision of Clauses 9 and 10, carry out the day-to-day administration of the Scheme.
(3) The Board may, for sufficient cause, remove/ dismiss any Executive Officer appointed under sub-clause (1);
(4) The Board may appoint such other officers and servants and pay them such salaries and allowances and prescribe such terms and conditions of service as it deems fit;
Provided that no post the maximum salary of which exclusive of allowances is rupees two thousand and above per mensem shall be created, and no appointment to such posts shall be made by the Board except with the previous approval of the Central Government;
Provided further that the sanction of the Central Govt. shall not be necessary to any appointment in a leave vacancy of a duration of not more than three months.
21. From the show cause notice dated 28.02.2008 issued to the petitioner herein by the Chairman, Calcutta Dock Labour Board it has been stipulated that after careful consideration of the charges set out in the charge sheet memorandum dated 06.10.2003, the Enquiry Report dated 27.03.2007 and other related papers as available in the record, the disciplinary authority, the Board, at its meting held on 28.11.2007, proposed in terms of rule 10(1) of Supplementary Service Rule no. 8 of the Service Rules for the Board employees, that the present petitioner then under suspension be reverted to his earlier post of Labour Relations and Welfare Officer.
22. From rule 8 of the Discipline, Punishment And Appeal Rules, framed by the Calcutta Dock Labour Board it further appears that no penalty specified in clauses (iv) to (viii) of rule 6 shall be imposed by any authority lower than the appointing authority.
23. Thus, from a plain reading of the Dock Workers (Regulations of Employment) Act, 1948 and the Rules and Schemes framed by the Calcutta Dock Labour Board thereunder it appears to me that the Calcutta Dock Labour Board is the appointing authority as well as the disciplinary authority of its executive officer like the present petitioner no. 1.
24. Where two separate Acts have been passed by the Parliament namely, the Dock Labour (Regulation of Employment) Act, 1948 and the subsequent legislation being the Major Port Trusts Act, 1963 it is crystal clear that the business of the powers of the Calcutta Port Trust will derive its origin from the Major Port Trusts Act, 1963 and the functions and administrative powers of the Calcutta Dock Labour Board will be derived from the Dock Workers (Regulations of Employment) Act, 1948 and the Schemes framed thereunder.
25. In the instant case admittedly the sanction order was accorded by Shri Roy as Chairman of the Calcutta Port Trust in 1999 and it has already been mentioned that he was appointed as Chairman of the Calcutta Dock Labour Board in 2002. The said sanction order was accorded not as Chairman of the Calcutta Dock Labour Board but as Chairman of the Calcutta Port Trust. The opposite parties have utterly failed to place on record any document before this Court to show that at the material point of time the Chairman, Calcutta Port Trust was empowered to act as Chairman of the Calcutta Dock Labour Board and as such was the appointing and disciplinary authority of the Calcutta Dock Labour Board.
26. In such sanction order Shri Roy has not mentioned that such sanction was accorded by him either on behalf of the Central Government or on behalf of Calcutta Dock Labour Board. He has exercised his administrative power as Chairman of the Calcutta Port Trust. In AIR 1979 SC 677 (Md. Iqbal Ahmed Vs.- State of Andhara Pradesh) it has been set at rest by the Honble Court as follows:
It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after ti was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show the facts placed before the Sanctioning Authority and the satisfaction arrived at by it.
Therefore, though onus lies upon the prosecution to prove valid sanction in two ways, in the instant case opposite parties have not been able to provide any such document and utterly failed to discharge their burden of proof. In the case of K. S. Dharmadatan Vs.- Central Government (AIR 1979 SC 1435) the Honble Apex Court has held inter alia, that the point of time when the sanction has to be taken must be the time when the Court takes cognizance of an offence and not before or after. In this case charge sheet was submitted by the IO on 22.07.1999 with prayer for taking cognizance on the basis of sanction accorded on 30.03.1999 by the Chairman, Calcutta Port Trust. Such sanction, therefore, seems to be without valid authority and as such cognizance taken in this case on the basis of such invalid and void sanction renders the entire prosecution without jurisdiction.
27. The settled law is that disciplinary action can be taken or initiated by the appointing authority who is the disciplinary authority and for the purpose of initiation of any departmental or criminal proceeding any officer subordinate to the appointing or disciplinary authority may accord sanction but ultimate penalty is to be given by the appointing authority which is the Calcutta Dock Labour Board in the instant case in terms of Rule 5(3) of the Scheme of 1970 as mentioned in paragraph 20 above. Obviously the Chairman, Calcutta Port Trust accorded sanction for prosecution in the instant case though he was not the employer of the present petitioner who was working in the Calcutta Dock Labour Board which is a separate statutory body under a different Act. Shri Roy cannot be treated as a subordinate officer of the Calcutta Dock Labour Board under any superior officer to initiate the criminal proceeding. Therefore, according of sanction by the Chairman, Calcutta Port Trust in the instant case as required under Section 197 Cr.P.C. or under Section 19(1)(c) of the Prevention of Corruption Act, 1988 as the case may be is not sustainable in law.
28. In 1998 C Cr LR (Cal) 398 (B. K. Samal @ Bijoy Kumar Samal Vs.- State of West Bengal & Ors.) it has been held inter alia that where the appointing authority, i.e., the Board is not according sanction but the sanction is accorded by somebody else, such sanctioning authority has not locus standi to accord sanction.
29. Paragraph 7 of the said case is quoted below for better appreciation.
7. To sum up the petitioner appears to have been acting as Assistant Provident Fund Commissioner and while acting in such capacity he was appointed as Recovery Officer by the Central Government itself. While acting in such capacity he is alleged to have committed an offence to which section 7 of the P.C. Act is attracted. Accordingly, sanction under section 19 of the said Act is mandatory before any Court takes cognizance of the offence. Since the Central Government has the authority to constitute a Central Board, none else but the Central Board can only appoint amongst others Assistant Provident Fund Commissioner. The Employees Provident Fund Scheme 1952 in its Rule 241(A)(2) however gives the Central Board power of delegation by means of a resolution empowering the Chairman to appoint officers other than the officers mentioned in sub-sections 1 and 2 of section 5(D). Since the Post of Assistant Provident Fund Commissioner comes under the sub-section 3 of the 5(D), Central Board and in the event of resolution being taken by this Board empowering its Chairman to appoint Officers, such Chairman alone is competent to appoint the Assistant Provident Fund Commissioner and none else. Accordingly, none but the Central Board and in case such resolution has been taken by the Board, its Chairman, is empowered to accord sanction for prosecution of an Assistant Provident Fund Commissioner under section 19 of the P.C. Act. Therefore, on the face of it the sanction is not valid, since the sanctioning authority has no locus standi to accord sanction.
30. Since previous sanction by the competent authority is the sine qua non of the prosecution as contemplated in Section 197(1) of the Cr.P.C. or Section 19(c) of the Prevention of Corruption Act, the instant prosecution is not sustainable in law though from other points of view the investigating agencies have complied with necessary formalities. 31. This point was agitated before the learned Court below by filing a petition under Section 239 Cr.P.C. praying for his discharge. While rejecting such prayer on 27.04.2004 learned Court below accepted the contention of the learned lawyer for the prosecution the Calcutta Port Trust and Dock Labour Board are under the same Ministry. Chairman of the C.P.T. has been empowered to accord sanction for proceeding against any employee of C.D.L.B. It has also been pointed out that the instant sanction for prosecution has been approved by the General Secretary of the Government of India, Ministry of Surface and Transport by letter dated 26.02.1999. Relying upon the above fact the learned Court below has decided the matter in the following way:
I find sanction was accorded before lodging of the prosecution. Thus, at this stage, it cannot be said that prosecution was lodged without any sanction. The veracity of the same cannot be adjudicated at this stage.
Accordingly, I do not find that this case has been lodged without sanction.
32. While considering the said order dated 27.04.2004 whereby and whereunder the learned Special Judge rejected the application of the accused under Section 239 Cr.P.C. and fixed 20.05.2004 for framing of charge. I hold that the learned Court below has not properly considered the basis of previous sanction required under Section 19(c) of the Prevention of Corruption Act by the competent person. I have already pointed out that the sanctioning authority was appointed as Chairman of the Calcutta Dock Labour Board on 26.12.2000 and before that he had no locus standi to accord sanction in the manner discussed above. Therefore, the findings of the learned Court below dated 27.04.2004 is not sustainable in law. Though at the right moment the accused raised such point for decision on merit. 33. Regarding the nature of allegation and the manner of acquisition of assets disproportionate to the income of the petitioner as an employee of the Calcutta Dock Labour Board no doubt is a serious one and requires state action, but such action shall have to be taken in accordance with law and by the authority prescribed by the legislature. Otherwise it will be treated as an action without locus standi as per ratio in 1998 C.Cr.L.R. (Cal) 398.
34. In 2001 SCC (Cri) 1234 (P. K. Pradhan Vs.- State of Sikkim, representated by the CBI) also it has been set at rest by the Honble Apex Court that the question of requirement of sanction for prosecution can be raised at any point of time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction. Therefore, the argument advanced by the learned Lawyer for the opposite party that at this stage the Court cannot look into the legality and propriety of the sanction accorded by the Chairman, Calcutta Port Trust after submission of charge sheet is not tenable and the competency of the sanctioning authority cannot be a ground for quashing of the proceedings is also not tenable. Rather in the case of Mansukhlal Vithaldas Chauhan Vs.- State of Gujrat (AIR 1997 SC 3400) the Honble Apex Court has held inter alia, that where sanction order is found to be bad, the normal rule is to remand the matter back to the concerned authority. But after a lapse of 14 years it will not be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial. This case is also pending for more than ten years and should not be remitted back for de novo trial with valid sanction. Relying upon the above principle I hold that the step taken by the accused at the early stage of trial questioning legality and propriety of previous sanction for prosecution is quite consistent with the spirit of law.
35. He has also drawn my attention, to the principle laid down in 2004 C Cr LR (SC) 127 (State of Madhya Pradesh Vs.- Awadh Kishore Gupta) to show that annexures to the petition cannot be taken into consideration for quashing any criminal proceeding. In the instant case the petitioner has annexed xerox copies of relevant schemes and disciplinary rules applicable in the instant case as well as the constitution of the Calcutta Dock Labour Board and appointment of the sanctioning authority in support of his contention to challenge the competency of the sanctioning authority in his objection as well as supplementary affidavit. But the document, particularly the Government notification delegating power upon the Chairman, Calcutta Port Trust to exercise the function and power of the Chairman, Calcutta Dock Labour Board is within the possession of the opposite parties but they are not furnishing the same for examination of the Court which is lying in their custody and the burden of proof lies upon them to prove the previous sanction. If the affected party places such documents in his annexures or by way of supplementary affidavit, Court cannot overlook such official document and refuse to take judicial notice which will also lead to failure to render complete justice in a case where invalid sanction for prosecution has been called in question. Therefore, I hold that the above principle is inapplicable in the facts and circumstances of this case. Learned Lawyer for the opposite party has also drawn my attention to sub-section (2) of section 4 of the Oaths Act, 1969 which runs as follows:
Section 4(2).- Nothing in this section render it lawful to administer, in a criminal proceeding oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.
It will appear that as per the above provision accused is debarred from administering oath or affirmation in criminal proceedings pending with the trial court. Obviously the said provision is meant for the Trial Court and in revisional application accused cannot be debarred from filing any affidavit or make an averment since such revisional application is not an appeal and cannot be treated as continuation of connected criminal proceeding in the strict sense of the term. Therefore, I hold that the said principle is not applicable in the instant case.
36. Learned Lawyer for the opposite party has also referred to and relied upon the following cases to prove that the petitioner is raising some disputed questions of fact after submission of charge sheet which cannot be looked into in revisional application and he may be at liberty to adjudicate on those points in course of trial.
i) (2007) 2 SCC (Cri) 514 [Soma Chakravarty Vs.- State, through CBI];
ii) (2009) 3 SCC (Cri) 996 [Indu Jain Vs.- State of Madhya Pradesh & Ors.];
iii) AIR 1999 SC 3706 = 1999 AIR SCW 3742 [Central Bureau of Investigation Vs.- V. K. Sehgal & Anr.] AND
iv) AIR 1991 SC 1260 [State of Bihar & Anr. Vs.- Shri P. P. Sharma & Anr.)
37. After careful consideration of the principles laid down therein I hold that the opposite parties have raised their objections regarding maintainability of this revisional application on grounds of disputed questions of facts only and as regards validity of sanction they have not furnished any document though the burden of proof lies upon them to prove that valid previous sanction was accorded for criminal prosecution of the present petitioner as alleged in the FIR. I hold since the sanction is invalid the entire criminal proceeding is void ab initio and on the basis of invalid sanction Court cannot allow continuation of the prosecution of the accused only for the purpose of dragging the matter without any fruitful result in future which will also be an abuse of the process of of law. For the aforesaid reason it is immaterial whether the charges brought against the accused are disputed question of fact to be proved in course of trial by the prosecution or not. Therefore, I hold that the said principles are also inapplicable in this case and to prevent the abuse of the process of law the instant criminal proceeding should not be allowed to continue unnecessarily as the same is not sustainable in law.
38. Therefore, I allow the instant application and the criminal proceeding being Special Case No. 4/1999 including order dated 27.04.2004 is hereby set aside and the petitioner-accused is discharged and released from his bail bond.
39. Urgent photostat certified copy of this order, if applied for, be supplied to the respective parties, upon compliance of all necessary formalities.